UK copyright reform and photographers

The UK Government has extended the period of copyright protection available for artistic work which is industrially produced.

For copyright owners of artistic work such as photographs, drawings and paintings, the reform brings a welcome change. Those who have been previously prevented from exercising their right due to its early expiry after 25 years, resulting from the work being industrially produced will now benefit from the full term of copyright protection. Copyright holders will now be gearing up to seek to enforce their new rights and pursue court action for enforcement.

The reform will also bring big changes to website owners and businesses such as designers, publishers and replica goods’ manufacturers as some of their activities which were considered legal will soon result in copyright infringement of artistic works. Those affected will need to prepare themselves to comply with the new regulations or risk exposing themselves to court action for copyright infringement. The likely impact is analysed below.

Harmonisation with Europe

The new law on copyright infringement will attempt to harmonise protection in the United Kingdom for industrially exploited artistic works, with protection given elsewhere in Europe. As part of the Enterprise and Regulatory Reform Act 2013, the UK Government announced the repeal of Section 52 of the Copyright, Designs and Patents Act (CDPA) (“Section 52”).

It has now announced that the change of law shall come into effect on 28 July 2016 and its transitional period will end on 28 January 2017.

How the areas for copyright infringement have been extended

Under the current Section 52, an artistic work such as a photograph that has been exploited by industrially producing the work and more than 50 copies are made and marketed, the period of copyright protection is limited to 25 years after it is first marketed. This compares to the full duration of protection given to other copyrightable work. The repeal of Section 52 means that the period of copyright protection for an artistic work, which has been industrially produced and marketed in the UK or elsewhere, will be extended from the existing 25 years to the full copyright term which is the life of the artist plus 70 years.

The rationale behind this new change is that artistic works that are reproduced on a commercial scale should enjoy the same degree of protection as other copyrightable work.

What this will mean is that the duration of copyright protection for industrially manufactured artistic work will significantly extend and for those works that had expired under the 25 year term will resurrect so that it has the same term as that afforded to other copyright works.

Implications of the reform

For artists such as photographers, graphic designers, and designers of items such as fashion, furniture and jewellery, the new reform will come as a positive change as it will increase the life of their work and create opportunities to bring enforcement actions to protect their new rights against those who fail to comply with the new rules. The benefits under the new copyright infringement law include:

Royalties could be claimed beyond the current 25 years;

The option to commence enforcement action against copyright infringement; and

Exploiting industrially produced copyright works for the full term.

The impact will be negatively felt by businesses, acting in reliance of the 25 year limit, which produce material such as websites, reference books, guide books and catalogues featuring photographs including those of furniture, fashion and art. However, there may be arguments to raise in defence of this use, such as whether the claimed copyrightable work actually qualifies for protection and ownership rights in the first place.

If the business does not have a strong case the impact of the removal of Section 52 and the new copyright law landscape brings changes. Changes for those businesses that are caught include:

Changing their business model to use designs that have expired their full copyright term;

Selling through existing stock before 28 January 2017;

Commissioning new designs and photography;

Investing in redesigning existing stock post 28 January 2017; or

Negotiating new licence agreements.

All of these changes will have cost and legal implications and there could be serious consequences for businesses who fail to take the necessary steps or get it wrong and find that they are presented with an allegation of copyright infringement.

Transitional provisions are in place to allow businesses time to alter their works and existing stocks, including time to sell off their existing stock. However, this period is limited to 6 months and will end on 28 January 2017.

How we see the market changing

The world of designers, manufacturing, photographers, film makers and publishers will have to change. Whereas traditionally they relied on Section 52 as a means of replicating industrially produced designs in their two dimensional (“2D”) works this is now likely to come at a price which pushes up production costs.

Himanshu Dasare, head of intellectual property law at Gannons deals with clients who both produce and use artistic works. Based on what he sees he considers that these reforms will lead to an increase in activity in both copyright infringement actions and new copyright agreements.

This blog has been prepared by Gannons and The Royal Photographic Society. It is intended as a guide only.

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